BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090017728 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, he served honorably 6 years and he received a Good Conduct Medal.  His wife left him after he got post housing and he did not move out.  He needs his discharge upgraded because he is seeking help from the Department of Veterans Affairs.

3.  The applicant provided no documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows he enlisted in the Regular on 20 May 1983.  He met the training requirements and he was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  The highest rank he attained while serving on active duty was specialist/pay grade E-4.  

3.  The applicant's record shows that during his active duty tenure he earned the Army Service Ribbon, Army Good Conduct Medal, Army Achievement Medal, Overseas Service Ribbon, and Expert Marksmanship Qualification Badge 
(Rifle M-16).  His record documents no acts of valor or significant achievement. 

4.  On 15 November 1988, the following charges were preferred against the applicant:

* Charge I: Article 132 Making a false claim against the Government
* Charge II: Article 121 Wrongful appropriation of the use of Government quarters
* Charge III: Article 134 Wrongful Cohabitation with a specialist not his wife
* Charge IV: Article 107 False Official Statement
* Charge V: Article III Driving while Intoxicated

5.  On 9 December 1988, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effect and of the rights available to him.  On the same date, the applicant also voluntarily requested discharge for the good of the service.  The applicant indicated he understood by requesting a discharge he was admitting guilt to the charges against him, or of a lesser included offense, and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also provided five statements from co-workers and a one-page statement written in his own behalf with his request.  The statements essentially indicated the applicant was not a bad Soldier; he just made the wrong assumptions which led to trouble.  

6.  On 20 December 1988, the separation authority approved the applicant’s request for discharge and directed that he be reduced to pay grade E-1 and issued an under other than honorable conditions discharge.

7.  On 10 January 1989, the applicant was discharged accordingly.  The 
DD Form 214 he was issued shows he completed a total of 5 years, 7 months, and 21 days of creditable active military service.

8.  On 8 February 1995, the Army Discharge Review Board denied the applicant’s appeal for an upgrade.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation provides, in pertinent part that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A UOTHC discharge is normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

11.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request that his UOTHC discharge be upgraded to an HD was carefully considered.

2.  The available evidence documents no acts of valor or significant achievement on the part of the applicant.  However, it does contain a charge sheet with five violations of the UCMJ.  His record clearly did not support the issuance of a GD or HD by the separation authority at the time of his discharge and does not support an upgrade at this late date.  

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulations.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  Further, the applicant's UOTHC discharge accurately reflects his overall record of service.  
4.  The ABCMR does not grant requests for an upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is individually decided based upon its merits when an applicant requests a change in the discharge.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____x____  ___x_____  ___x__  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   _x______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20090017728



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ABCMR Record of Proceedings (cont)                                         AR20090017728



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